Apr 232011
 April 23, 2011  Posted by  Court, Surveillance

Some excellent commentary by criminal defense attorney Scott Greenfield on the abuses of wiretapping authority, following the highly personal and criminally irrelevant material recorded in the Raj Rajaratnam case:

Not only did the government overhear and record communications that bore no connection to crime, but the court allowed them to be played to the jury.  The argument was that these personal conversations established the relationship giving rise to insider information was passed along.  Like the ubiquitous claims of “background,” arguments like this can be used to admit anything and everything, since it’s all interconnected in some metaphysical sort of way.  Mind you, it’s total nonsense, but that never stopped a judge from acquiescing to a purely rhetorical argument by the government.

And in the Craig Drimal trial:

Judge Sullivan, whose path to the bench went through the United States Attorneys office in Manhattan, wagged his finger very, very hard at the prosecutors.  He probably had a very stern look on his face as well.  He told them that he was “deeply troubled,” but not deeply enough to do anything about it.  The remedy for violation of Title III, which was to be strictly construed, is suppression.  The government was not to enjoy the benefit of this horribly intrusive means to insert themselves in people’s most personal communications unless it played strictly by the rules.

Or not.  Judge Sullivan ruled that the errors didn’t justify suppression.

Read more on Simple Justice.

With respect to the latter case, I had recently commented, “He [the judge] may be troubled by it, but there really doesn’t seem to be an adverse consequences to the prosecution.” Scott’s commentary seems to confirm my impression, leading me to ask whether it’s too late to go back to what judges should have been doing in these situations. Otherwise, I don’t see any incentive for prosecutors to adhere to what they are supposed to do – or not do.

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